by David Feige
“But . . .”
“Just go see Marvin.”
“Now?”
“Now. Go!”
“He knows?”
Eddie just stared at me as if I’d disappointed him with the stupidity of my question, as if I should’ve figured he couldn’t protect me from a fuck-up of this magnitude. I opened my mouth to say something, but Eddie’s eyes were wide and volcanic. He shook his head slowly and pointed his index finger diagonally upward toward Marvin’s office. Go take this like a man I could almost hear him say to me.
Being called up to Marvin’s office was bad. It’s not that Schechter was scary or mean, it was just that if Marvin was involved, you’d already gone beyond the bounds of anticipated misbehavior --like a principal’s office, just being sent there was reproof enough. But Marvin Schechter was actually far less terrifying than Eddie. Eddie was a different species from me, and his tyrannical blend of manly disapproval, maniacal intensity, and aloofness was a potent combination I never quite knew how to deal with. Marvin, by contrast, was easy. Marvin was a little, smart, wisecracking Jewish guy who, unlike Eddie, liked to be liked. Eddie just liked to be feared.
“Hi, David --he’s expecting you,” Dianne, Marvin’s almost inhumanly lithe secretary, chirped as I appeared at the door to his office. “Go right in.”
Marvin was sitting behind his long desk. There was a carpet on the floor --it was perhaps the only place in the whole building where the linoleum wasn’t bare.
“So I heard you took a homicide,” Marvin said, looking up and casually motioning me toward a tall chair facing the desk. His voice was noncommittal, the same tone he used for both commendation and condemnation.
“I did, Marvin. And I want to keep it,” I said, giving him my most serious stare. “So before you say anything, please just hear me out. I believe I can do this, and I’d really like it if you gave me a chance.”
I saw him take a breath, and in that millisecond, I knew he was going to interrupt me and shut me down. So I charged ahead: “I got her out, Marvin!” I said. “I spent al day yesterday at the crime scene. I have photos, got them developed last night.” I held out the packet of photos I’d taken. “I got witnesses --names, addresses, everything --I’ve already talked to them. I’ve done tons of investigation --I’ve met my client’s family and talked to the neighbors. I’ve got a great self-defense claim, and I want her to testify before the grand jury. I know I shouldn’t have taken the case. I know it, and you can yell at me al you want, but, Marvin” --I scrunched up my face to be sure he understood just how serious I was --“I want to keep this case. I can do it. I’ll abide by whatever conditions you put on me --I’ll work with Eddie on it if you want, or anyone else, but I believe in the case, I’ve done the work, and I’m ready. Really. I’m ready.”
Marvin’s eyes had narrowed slightly. “You said you got her out?”
“Karopkin cut her loose --ROR.” I nodded for emphasis. “I met with her yesterday.”
“And you understand why this is an issue?”
“Yes, Marvin. It was in the basket --I know I probably shouldn’t have done it. I understand.”
“And you’ll work with Eddie on it? It’ll be his officially.”
“That’s fine.”
“If that’s okay with Eddie, it’s okay with me,” Marvin said. “You’ll keep me posted on what’s happening with it?”
“I promise. I will.”
“Okay. Go talk to Eddie about it.” Marvin was smiling slightly. “And good work. I know you really want this.”
I was stunned; I never really thought he’d give it to me.
“I’ll do good, Marvin, really I will.”
“Don’t fuck up.”
“I won’t. I promise.”
“You better not,” Marvin said, his gaze shifting down to whatever he was doing before I walked in. The tips of his fingers made the slightest brushing motion, as if I was an errant fly who’d landed on the wrong slice of pie.
“Thanks, Marvin,” I said. “Thanks a lot. I really appreciate it.”
He didn’t look up.
Sometimes a little rule breaking goes a long way.
- - - -
Downstairs, Eddie was waiting.
“He said what?” Eddie was disbelieving. “If you’re breaking my balls about this,” Eddie said in his special way, “I’ll rip your fucking lungs out --you understand me?”
“Yes, Eddie. I swear, Marvin said I could do it as long as you worked on it with me.”
“Don’t make me regret this,” Eddie said, glowering.
“I won’t, Eddie. I promise.”
Eddie nodded with his chin toward the brown Naugahyde swivel chair next to his desk and composed his face.
“Okay,” he said soberly. “What’ya got?”
I told him, and for the next few exhilarating hours, I got my first tutorial on how to think about a homicide.
- - - -
Controlled completely by prosecutors, a grand jury is a venue unusually hostile to defendants and defense lawyers. Unlike a trial, grand jury proceedings are secret --in most cases defense lawyers don’t even know what happened inside until the eve of a trial, and even then they’re only partially informed. Only the prosecutors know who was called to testify, or what they had to say, and though a defendant has the right to testify before a grand jury, it is a right that is exercised sparingly: testifying subjects a client to an almost unlimited cross-examination, with no opportunity for rebuttal. Prosecutors make the rules in the grand jury, and they do so with minimal judicial oversight.
Still, if the grand jury believes that someone has not committed a crime, they can refuse to hand up an indictment by voting what is known as a “no true bill.” In effect, a no true bill ends the prosecution.
Thus, testifying before the grand jury is a high-risk, high reward strategy. But with Gillian having explained everything on videotape, it wasn’t as if our defense was going to be a surprise. Besides, now was a good time to have her tell her side of the story --it was still fresh in her mind and emotionally resonant, and who knew how she’d come off if we waited two years for a trial?
The criminal justice system is grounded in the idea that truth is a slippery thing. In the vast majority of cases there is no high angle, omniscient camera recording the events precisely as they unfold. As a result, the attorneys, juries, and judges are left to cobble together, from questionable perceptions, shifting recollections, and forensic evidence, some vague facsimile of truth. Because our system is based on the procedural mechanism of proof rather than on some ontological notion of truth, knowing what the prosecutors have is often as critical as knowing what they don’t have. Since most (certainly more than half) of my clients are actually guilty, figuring out how easily the prosecution can prove the case is often invaluable in deciding what a good plea deal is. Paradoxically, sometimes even the most damning evidence winds up being the best for a client --because it allows him to see that fighting the case is fruitless and persuades him to take a deal early, before the price goes up.
I worked with Gillian twice a week for more than two months to prepare her testimony. First we agreed on a structure --who she was, the story of meeting and courting her husband, and finally, what happened the night she stabbed him. And when she was finally ready, after the prosecutor called to let us know that they were actually proceeding against her (I’d hoped against hope that they might just dismiss the case), on the day that she walked nervously into the grand jury room and took her seat before the risers containing the twenty-three citizens that would decide whether or not to indict her, that afternoon, when she put it all together for the first time, explaining her hardscrabble life, her deep love for Rodney, and how their marriage had disintegrated when he started to beat her, I knew we had a shot.
“He was so good to me,” Gillian choked out before dissolving into tears, “so gentle and funny, strong and handsome. I loved Rodney so much. And I killed him.” She took a deep breath, steadying herself. �
��It was getting worse and worse. He kept hitting me harder, longer. I knew I should have just covered up and taken it.” There was a hiccup as Gillian struggled for air, for control over her voice. “I should have let him do it . . . I know. I know.”
“Take your time, Gillian,” said the prosecutor.
“He was hitting me so hard,” Gillian continued in a whisper.
“We were in the kitchen, and the knife was there.”
She was almost hyperventilating now.
“And I just did it. I grabbed the knife and I poked him and he was still hitting me and yelling and beating me and I just . . . I just . . . killed him. I loved him, and I killed him.”
Gillian broke down completely, racked with the kind of heart-wrenching, remorseful sobbing that takes your breath away with its piercing intensity. And as I tried to contain myself, looking down at the floor so that the jurors wouldn’t see my own tears, I noticed the assistant DA in the back of the room looking as though she was going to cry too.
There wasn’t much cross-examination.
The ADA had said she intended to vote the case right away. Apparently, after Gillian’s emotional testimony, she changed her mind. She may have been on the verge of tears, but she still wanted that indictment. Two days went by, and I began calling the ADA. “When are you going to vote the case?” I’d ask. “Oh, I’m not done with my presentation yet,” she’d reply unconvincingly. It was clear to me what was going on --she was icing us, waiting so as to diminish the impact of Gillian’s testimony, hoping that as time wore on, the grand jurors would forget everything except that she admitted to stabbing Rodney, and would therefore charge her with murder. The longer the ADA waited, the more Gillian’s testimony would recede in their minds --and the more likely it was that they’d indict. There was nothing to do but wait.
For three weeks I called the ADA daily, with no results. As bad as I was about waiting, Eddie was a lot worse. As another week edged into past tense, we met in his office. Eddie’s blue eyes were blazing. He’d been drinking for about an hour, and on his desk, lined up neatly like obedient soldiers, were five empty cans of Budweiser.
“Listen to me, you little fuck.” Eddie’s speech was slow and menacing “You think you’re good.” Eddie was staring. The other people in the room looked on nervously as he leaned in, his cold eyes locked on mine. “You think you’re so fucking good.”
“No,” I said slowly. “I don’t think that at all.”
“Yes, you do . . . , you fuck.” Eddie was wagging his finger now, his Vietnam-vet eyes furious and brutal. “You know what? Somebody’s gotta put you in your fucking place.” I wasn’t sure where he was heading with this. The other lawyers watched me the way rubberneckers watch a car accident. Eddie staggered to his feet.
“Let me tell you something,” he declared, his words slurring together just a little. “If they indict that woman for murder, I’m putting you on a fucking bus back to Wisconsin. You hear me?” Eddie leaned forward, his powerful square chin thrust toward me.
“They’re not gonna indict her, Eddie,” I said slowly, looking him straight in the face. “And if they do” --I paused for just a second before deciding to give Eddie exactly what he wanted --“you don’t have to worry about it. I’ll take myself back to Wisconsin.”
It was 5:45 p.m. when I finally got the call: no true bill.
I’d won my first murder case.
In the dozen years since I took that case, I’ve represented murderers, rapists, prostitutes, and drug dealers. I’ve seen cops lie and maim and subvert the rules of orderly society, watched as heartless, exhausted judges herded people through their courtrooms and into jail, barely glancing up to see who they were sentencing. And yet, after all these years, I can still see what was so plain about the woman who grabbed the kitchen knife and stuck it to her husband: it’s often not as obvious as it was in her sad case --battered mad at the hands of a violent husband --but always, if you look hard enough, there is a story, a human drama that casts in a different light the horrific specter of criminality.
This book is about those stories. It is about justice for the haves and the have-nots, about what it is like to be a lawyer in the big city --not a lawyer at a firm in a tall building, defending clients in expensive suits. No, this is about law without the cuff links, about law as it’s really practiced --in the drab and common precincts, where man’s inhumanity to man is writ large in every tragic detail of otherwise invisible cases. It is about a single day in my life as a public defender in the South Bronx. And it is, in the end, about everyday life in a thousand city courtrooms across America, in the grimy brick buildings and corroding concrete warehouses where American injustice is dispensed bathed in flickering, fluorescent light.
O n e
Monday 8:52 A.M.
I woke up dreaming. Of Angelo Tona.
Judge Tona made me cry.
King of the calendar, dean of dispositions, Tona could do a hundred cases in a single night without breaking a sweat. He rarely listened to lawyers and barely glanced at the people he processed like so much Spam. “Three days’ community service,” he’d bark without looking up. Clients had about ten seconds to decide. “Fifteen days’ jail. You want it, yes or no?” he’d bellow. There wasn’t much bargaining room.
Tona was an equal-opportunity bully: if he didn’t like a prosecutor’s offer, he’d release the defendant; if he thought defense counsel greedy, he’d jail the client. But this wasn’t about balance or equity. Tona’s courtroom was about power, his power, pure and simple.
This was a lesson I learned the hard way. I had been a public defender for less than a year.
It was late at night, and the dingy seventh-floor courtroom was packed with anxious faces, watching as their loved ones were paraded before Judge Tona. I don’t remember the client’s name anymore, nor do I remember what possessed me to argue with Tona. In retrospect, I’m sure I thought my client was getting screwed. After all, most people got a raw deal in Tona’s court. The charges were certainly minor, the defendant likely half decent, at least.
Maybe it was the hour --it had to be 11:00 p.m. or so. Because of the huge number of cases, night court routinely ran into the wee hours of the morning. “Legal Aid Society, by David Feige,” I announced as I had a dozen times already that night. Then, in the standard formula used in every arraignment to get things moving along, I said, “Waive the reading but not the rights.” This meant we were fine with skipping the recitation of the charges, but that didn’t mean we were giving up any other procedural or substantive rights the client might have.
“No offer here, Judge,” the assistant DA replied.
“Okay,” said Tona. “Bail is set in the amount of five hundred dollars, cash or bond.”
“Huh?” I exclaimed. The way the process worked was that the prosecutor made his request and the defense got a chance to respond. I hadn’t yet opened my mouth to make a bail argument, and Tona was moving on.
“Next case, please,” Tona said matter-of-factly.
“B-but, Judge!” I stammered. “I didn’t get to . . . uhhh . . . I’m asking you to release my client on his own recognizance.”
From the bench: “Be. Quiet. Mr. Feige.”
“Your Honor! My client is a high school graduate, he’s working full-time, and —”
“I said, next case please.” Tona couldn’t have been cooler.
“His mother is here, in court.” I was getting frantic. As far as I was concerned, this was clearly a kid who shouldn’t be going to jail --a place of violence and depredation, a place where even a single night in a cell risked robbery, mayhem, or even prison rape.
“One more word from you, Mr. Feige, and bail is going up. One hundred dollars a word.”
“Your Honor!” I cried.
“Seven hundred dollars!” he said.
“You can’t do that!”
“Eleven hundred!”
My mind was racing; I didn’t know what to do. My client looked stunned. A uniformed court o
fficer handcuffed him and led him toward the back of the courtroom, through the door that led to the largest penal colony in the world --Rikers Island. I was panicking.
“Judge, I’m begging you. Please . . . my client deserves to be released. He’s a college-bound kid. He’ll come back to court. He’s never been arrested before, and he has family here . . . please . . . , Judge!”
Tona looked down at me with bovine placidity. “Bail is twenty-five hundred dollars, cash or bond. Anything else, Mr. Feige?”
I was trembling. I couldn’t believe it. By pushing the bail amount beyond anything my poor client could hope to post, I had effectively argued him into jail. I felt my forehead start to flush; tears welled up in my eyes. The bridge officer called the next case. I turned to the back of the courtroom and, spying the doors, ran.